Public Bill Committee

[Ann Winterton in the Chair]

Clause 2

Learning disability

Amendment proposed [this day]: No. 40, in clause 2, page 2, line 4, after ‘disability’, insert ‘or an autistic spectrum disorder’.—[Angela Browning.]

Question again proposed, That the amendment be made.

Rosie Winterton: May I first say what a pleasure it is to see you in the Chair, Lady Winterton, not least because of your surname?

Tim Loughton: That won’t help you.

Rosie Winterton: I can try.
Returning to the amendment, the point that I made earlier is that there is very little case law that would help us to say precisely what abnormally aggressive or seriously irresponsible would mean.

Ann Coffey: My hon. Friend’s remarks are also pertinent to the clause as a whole, which deals with learning disability. In view of that, I find it difficult to understand why it is in the Bill at all.

Rosie Winterton: My hon. Friend makes a good point. However, as I explained earlier, the reason we have kept in clause 2, on learning disability, is that there has been a historic attachment to saying that learning disability should be included in the Bill in this way, and I am afraid that there is no getting away from that. We took the clause out of the 2004 draft Bill, but there was heavy pressure to reinsert it, not least from the pre-legislative scrutiny Committee. In view of the points that were made, and the fact that hon. and right hon. Members and peers felt that we needed to be responsive to them, we said that we would agree with the pre-legislative scrutiny Committee on learning disability, because that meant that when we were considering amending the Mental Health Act 1983, we would be able to leave it as it was originally.
However, my point today is that to go further than that would, I am afraid, cause the difficulties that we have discussed, not only by creating the potential for uncertainty and the possibility of people not receiving the treatment that they need, but over and above that, because people suffering from hyperactivity or obsessive compulsive disorder could make a very reasonable case for doing exactly the same thing.
That is why I am afraid we cannot agree to the amendment. I understand completely the sentiments of the hon. Member for Tiverton and Honiton and I know that she feels extremely strongly about the issue. However, at the same time as saying that we do not believe that the amendment is the right approach for this particular Bill, we want to ensure that we take on board all the issues that she raised regarding early diagnosis, and proper care and treatment. Nevertheless, I am afraid that I must urge the Committee to reject the amendment.

Angela Browning: May I say what a pleasure it is to serve for the first time on a Committee under your chairmanship, Lady Winterton?
I should like to pick up on the Minister’s final considerations of the clause, not least her remarks immediately before the Committee rose this morning. Clearly, she prayed in aid in support of her decision not to add autistic spectrum disorder as outlined in the amendment. She said that there was confusion, and she prayed in aid the case of a young man with an Asperger’s diagnosis who was apparently minded to light fires. Whether he has an ASD diagnosis or not, I think that we all understand such activity to be arson. She described how difficult it would be for the court to decide whether to send him to prison or to hospital. I have to say to her that the confusion and lack of clarity is with the existing legislation. It is quite clear that if the words “seriously irresponsible” are used and if a court believes that someone is an arsonist, that court has a duty to identify an appropriate determination of that case. It is up to the court to determine whether that person, regardless of their diagnosis, is sent to prison or hospital. Therefore, by identifying seriously irresponsible conduct, the provision actually clarifies the situation of a person with an ASD diagnosis who is before a court in those circumstances. I cannot agree from the Minister’s example that that would confuse people. I think that it would clarify the current situation.

Rosie Winterton: I admit that it is an extreme example. I was trying to make the point that because there is little case law, the court would have to look at each case and decide whether the action was serious and irresponsible. By adding ASD in those circumstances, we are putting another hurdle in the way of getting treatment to people.

Angela Browning: I do not want to pursue that individual case too much, but I think that the example the Minister gave before lunch made my case for me more succinctly than anything I had said in my hour-and-a-half-long presentation to the Committee. The Committee was extremely tolerant, and I am grateful to everyone. However, the Minister’s pointis that if somebody was before a court in those circumstances, the court would have difficulty deciding whether the action was seriously irresponsible. If it even considers prison to be an appropriate sentence, then by definition the action is seriously irresponsible. If it was not seriously irresponsible, the option of a custodial sentence would not come into the court’s considerations. I have heard the Minister’s answer, but I must ask her to revisit that case. What is being proposed would clarify matters and not obscure them.
In conclusion, I fully understand why the Minister does not want a large pick-and-mix list of other conditions that might be appropriate to tag on. I hope that in the report of my submission this morning, I will have outlined many cases in which treatment and consideration of ASD is also appropriate for people with learning disabilities and vice versa. The conditions are different and it would be wrong in many circumstances to lump them together. For the purposes of the legislation, we know from what we have learned in recent years—how the condition presents itself and its appropriate management—that that is an area that is not being addressed at the moment.
The Minister has said that learning disabilities are included because there is an historical reason fordoing so. That is quite true; it is a matter of record. Instead of looking at history, the Minister now has an opportunity to make it. There comes a point when people must say that there is sufficient evidence to change in legislation what has changed around us. What has changed around us in recent years is the recognition and management of treatment of ASD.
I do not intend to press the amendment to a vote, not least because the Minister has been incredibly generous in agreeing to a meeting on Thursday, after the clause has been debated, with me and representatives from the National Autistic Society, including a doctor with a lot of experience in managing such cases. I hope to have another opportunity then, perhaps in a slightly quieter environment, to talk her through the more salient points. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3

Changes to exclusions from operation of 1983 Act

Rosie Winterton: I beg to move amendment No. 15, in clause 3, page 2, leave out lines 22 to 30 and insert—
‘“(3) Dependence on alcohol or drugs is not considered to bea disorder or disability of the mind for the purposes of subsection (2) above.”’.
The amendment will remove the exclusions added in the other place. Again, it might be helpful for me to give some background to the history of exclusions. The Mental Health Act 1959 contained only one exclusion, stating that nothing was to imply that anyone could be dealt with under the Act as having a mental disorder by reason only of promiscuity or other immoral conduct. Such a provision is quite understandable in the context of the times, as there was still a recent history of the law being used—or, as I am sure we all agree, misused—to detain women, in particular, not for health care reasons but for moral ones, such as having a child outside marriage.
When the 1959 Act was overhauled in 1982, two more exclusions were added—one for alcohol and drug dependence and one for sexual deviancy. The latter was agreed with virtually no debate, but we think that its main target was homosexuality. It is probably worth remembering that even as late as 1982, homosexuality still appeared in the international classification of diseases as a mental disorder. Today, of course, we do not think of it as a disorder at all, nor as sexual deviancy.
When we came to the current reform of the legislation, our starting point was that the needs of patients and the risks posed by their disorders should determine whether powers of compulsion should be used where there is no other way of getting people the treatment that they need. I am afraid that exclusions get in the way of that principle. They are essentially arbitrary and do not necessarily say anything about the needs of the individual. However, we listened carefully to what was said to us, took account of the recommendations of the Joint Scrutiny Committee and agreed that we should keep an exclusion for alcohol and drug dependence.
There is no doubt that such dependence causes a lot of harm, but we do not have a history of using mental health legislation to force treatment for dependence alone, and we were persuaded that there was no compelling case to start doing so now. By contrast, we remain convinced that the exclusion for sexual deviancy should go.

Chris Bryant: I am sorry that I have caught the Minister a sentence after she said the word “alone”. She will note that in the exclusions that the House of Lords has given us, the emphasis is on the word “solely”. For example, there is an exemption for people who might be detained solely on the grounds of substance misuse. There is no such word as “solely” in the Government’s amendment. Would she consider changing that?

Rosie Winterton: That is an interesting point. I suspect that, because of the way in which the reference to dependence on alcohol or drugs is phrased, we will have been advised that the use of the world “solely” is not necessary. However, I take on board what my hon. Friend has said and I will look into whether it would clarify the point that we are trying to get across, which is, as he has said, that treatment should not be forced on people for dependence alone. I take on board the point that I think he is making about the way in which the Bill reads, and I shall come back to him about that.
As I said, we remain convinced that the exclusion for sexual deviancy should go. Paedophilia and various other paraphilias can constitute mental disorders and there may well be treatment that can be offered. If a person with such a condition meets the criteria for detention under the Act because of the risk to themselves or to others, we believe that it is important that the Act is available. The fact that a mental disorder that can be treated happens to be related to sexual deviancy, or whatever one wants to call it, does not render it somehow not a real mental disorder.

Tim Boswell: As the Minister will know, I am a comparative newcomer to some of these areas, but can she consider the case of sex addiction, which I suspect is a term of art rather than necessarily a precise term, and whether someone canbe addicted to committing sexual acts in the sameway as to alcohol or other substances? If so, and if somebody’s dependence is of that nature, what is the criterion for their inclusion when the alcohol or drugs addiction is excluded?

Rosie Winterton: I am not clear whether sex addiction is a mental disorder. I suspect that it probably is. [Interruption.] I can see that we are getting into deep water. However, to return to the point about sexual deviancy, the problem has been that although various things, such as homosexuality, are not considered a mental disorder, nevertheless things such as paedophilia and paraphilia are considered a mental disorder. The danger is that it has previously been possible for a paedophile to argue, for example, that they were excluded from the Mental Health Act, as some might prefer a prison sentence to a hospital order. We wish to get rid of that in order to prevent such problems from arising.

James Duddridge: It is a pleasure to serve under you, Lady Winterton.
What consideration did the Minister give to excluding paedophilia and any other acts that would be encompassed, instead of entirely removing proposed paragraph (b) to section 1(3) to the 1983 Act? Alternatively, instead of considering sexual identity and orientation, homosexuality could be specifically mentioned so that it was exempt.

Rosie Winterton: I will come to that point. The Lords amendment does not restore sexual deviancy. I was trying to explain the background to our changing the exclusions. I was explaining why, because of the issues that I have just mentioned, we decided to exclude sexual deviancy. The amendment does not reintroduce it. There are different reasons why we believe that that is necessary. That is the background to the previous exclusions. I shall now deal with why we disagree with the exclusions that we are currently discussing.
Unfortunately, the other place introduced a new set of exclusions into the Bill. As hon. Members can see,
“sexual identity or orientation...commission, or likely commission, of illegal or disorderly acts”
and
“cultural, religious or political beliefs”
would be excluded. However, those exclusions have never been included and, as far as we can see, theyhave never been needed. Although I use the word “exclusions”, I am probably using it incorrectly, because the things that are listed are nothing of the sort. They are about conditions, behaviours and beliefs, but none of them are mental disorders.

Tim Boswell: On a more substantive point thanmy earlier one, does the Minister appreciate that the background to this matter inevitably concerns not necessarily the practice in the United Kingdom, the good faith of Ministers or the system, but the fact that in certain countries there are chilling experiences of persons being singled out for mental treatment because their face does not fit? That may be because oftheir sexual identity or because they happen to hold political beliefs, which we might all find thoroughly objectionable, or they may be regarded as morally disreputable, but none of those things constitutes a mental illness on its own. Some other evidence would be required for compulsory treatment to be appropriate. If that evidence were available, these tests could reasonably be set aside.

Rosie Winterton: I hope that as I go through the arguments I might be able to address some of those points. I understand what the hon. Gentleman is saying. If we want to guard against something happening in future, where clinicians suddenly wanted to lock people up because of their political beliefs, for example, we can say that that is an issue. However, being realistic, we have to say what such exclusions are meant to do. They are meant to be exclusions from provisions dealing with mental disorder, but as I said, the items are not considered mental disorders in the first place. As I said, the exclusions are unnecessary.
If somebody felt that they had been detained and given compulsory treatment because of their political beliefs, they would first have to get two doctors to sign up to the fact that they had a mental disorder. They would then be able to appeal to the mental health review tribunal and say, “I have been detained because these two doctors think that my belief in x, y or z is a mental disorder, but in my view it is not.” Even in the first appeal process that a patient would go through, we have built in safeguards in order to give a personthe ability to appeal if the basic criteria on which compulsion works have not been fulfilled. Somebody can say, “I do not have a mental disorder; therefore it is extraordinary that I have been detained simply because of my particular political or religious belief”. On the other side, having said why our safeguards make such exclusion unnecessary, there is immense potential to create confusion about the operation of the legislation and therefore to prevent people from getting the treatment that they need. It is not an enormous risk, yet it is there; we cannot avoid talking about that possibility.
It is also important to recognise that we particularly need to look at whether the amendments that have come from the other place contribute anything in making the Bill more effective in usage for clinicians. I understand that the Royal College of Psychiatrists has argued that it will make psychiatrists think twice. Well, I would have hoped that they were thinking twice in the beginning and that the approach was not, “Well, let’s really think this through” after the event. We have always said that psychiatrists should examine whether they are judging somebody else from their particular cultural stance; they should make sure that they understand them. If they do not agree with someone, it does not mean that that person is mentally disordered. That should be part of best clinical practice. We should not be using legislation to say to people that they must think about someone’s cultural beliefs, when that should be part of how they work.

Doug Naysmith: It is a pleasure to serve under your chairmanship, Lady Winterton.
Does the Minister not agree that all the things listed by the hon. Member for Daventry are examples of abuse of psychiatry and mental health legislation? I understand exactly why the hon. Gentleman is making these points, but if such things happened in this country, we should have sufficiently well regulated medical and psychiatric professions to ensure that they stop. I agree with the Minister that it is much better not to have all these things outlined individually; for a start, we do not want to put ideas into people’s heads.

Rosie Winterton: I agree absolutely with my hon. Friend; to go down such a line would almost be dangerous for us, because we would be taking away the expectation that the clinician should be making a proper judgment. The idea that this is somehow an excellent thing, because it would make them think twice, is deeply worrying.

Ann Coffey: And offensive.

Rosie Winterton: As my hon. Friend says, I am sure that it is quite offensive to a number of rather good psychiatrists.

Tim Boswell: On that point, while I understand the purity of the Minister’s argument, can she explain something that is puzzling me? Why is it necessary to effectively ring-fence substance and alcohol abuse? If she really wants to stand by her conviction, why does she not simply strike out all exclusions and leave the matter to the clinical judgment of practitioners?

Rosie Winterton: Again, that goes back to the long-standing agreement that we must be careful in saying that we could detain somebody solely on the grounds of their addiction to drugs and alcohol. It has been said that someone who is an alcoholic has a mental disorder. However, there has been a desire not to want to detain someone who, for example, might get drunk on a Friday night and as a result becomes violent. We have said that there would have to be an underlying or resulting mental disorder for that person to be detained.
The treatment of the person simply for their alcohol problem should probably be the responsibility of the addiction services. However, if we want to treat someone who has an alcohol problem and underlying severe clinical depression that makes them detainable, that is why have said that, in those circumstances, alcohol and drug dependency are mental disorders. The other conditions are not mental disorders, which is why we must have the exclusion provision for drugs and alcohol unless we decide to detain people for drug and alcohol addiction alone, which is something that Parliament has never said that it would do.

Chris Bryant: The Minister has referred almost exclusively to alcohol dependants. Clearly, no psychiatrist in Britain will want to detain someone for getting drunk on a Friday night. It would be a very big job detaining everyone who did that. The Lords amendment referred to substance misuse, including dependence, whereasthe Government amendment refers only to dependence, not misuse. If they want to stick with that idea, wouldit not be more sensible to refer to misuse anddependence?

Rosie Winterton: Until fairly recently, it was not clear to us what was meant by misuse. I now understand that the Royal College of Psychiatrists has clarified the meaning. Apparently, the idea is to cover what might be called binge drinking. I referred to someone who drinks every day, but on a Friday night may become very drunk and violent. At the same time, certain people might get very, very drunk and, for a few days, hallucinate and become delusional because of the extent of their drunkenness. That might be an appropriate point at which to detain them because they had become so severely delusional that the Act would be necessary for a limited time. That is why we have not covered that situation by “substance misuse”, but as dependency.

Hywel Williams: It is a pleasure to see you in the Chair, Lady Winterton.
The Minister suggested earlier that it would be patronising to the practitioners to draw their attention to certain things. I draw the Committee’s attention to the fact that, in other aspects of law, such as child-care law, it seems to be entirely appropriate to draw practitioners’ attention to the need for them to give due regard to children’s background, ethnicity, language, culture and a whole long list of matters before taking children into care. Should we be arguing against such provisions in that other context? Would the Minister apply the principle across?

Rosie Winterton: I am not sure that I caught everything that the hon. Gentleman said. I think it important for clinicians to operate in a non-judgmental way, while looking at people’s background or culture. The viewpoint should be that people do not have a mental disorder just because their ideas might not seem absolutely normal—to use a phrase. Our reason for thinking that such people should not be in the clause is because everything listed there, apart from dependence on drugs or alcohol, is not a mental disorder. Theyare being excluded from “mental disorder” for the purposes of the Act.

Ann Coffey: It is a pleasure to serve under your chairmanship, Lady Winterton.
Does my hon. Friend agree that there is a world of difference in talking about what constitutes a mental disorder in terms of substance misuse or dependency—because of the inter-relationship between alcohol and drugs and mental disorder—and in terms of putting in exclusions such as cultural, religious and political beliefs that have nothing to do with mental disorder but with a state of society that might or might not come about with the overthrow of the democratic Government? If that happened, having that in would not help any of us, because we would all be in jail.

Rosie Winterton: I am glad that my hon. Friend makes that point. I was wondering about hiding behind the Bill in the circumstances where everyone was being locked up for their cultural, religious or other beliefs. Holding up the Mental Health Bill would not necessarily help.

Tim Loughton: There are many points on which I would be grateful for greater definition between what the Minister regards as misuse and what she regards as dependence. For example, what about the person who goes out and gets drunk on a Friday night and then becomes violent? What about the chap who gets severely drunk every Friday night? Is the latter to be hauled off to a mental hospital or will he be recommended to Alcoholics Anonymous and given hospital health treatment or whatever?

Rosie Winterton: We have been very clear about the legislation continuing to operate as it does as the moment. We will have the status quo when the new legislation comes in with respect to drug and alcohol dependencies. There will be no difference in how the legislation operates now. If somebody has drug and alcohol dependency, that is not the only thing that they can be detained for. I want to come on to a couple of other points, but I can go over the issue of misuse if the hon. Gentleman did not pick it up the first time.
The Royal College of Psychiatrists, which suggested an amendment, has said that that interpretation of misuse is needed to stop binge drinking or the casual consumption of illicit drugs being the basis of compulsion. As I said, there is no such exclusion at the moment; it is simply in respect of dependency. That is about a one-off misuse of alcohol or drugs. It is true that, at the moment, we do not have wards full of binge drinkers or casual drug misusers. That is anticipating something that does not happen at the moment. There is nothing in the Bill that would change the current position, but it is important to ensure that in certain cases there is scope for dealing with people who might have become extremely delusional for a time, and the Bill allows for that.

Sandra Gidley: I am confused. The reason for the exemptions is that there is now a much broader definition in some respects.

Rosie Winterton: No there is not.

Sandra Gidley: We can argue that point, but we have finished clause 1 and I do not want to revisit it. If mental illness is considered as a condition under ICD10, the definition covers acute intoxication, harmful use of a substance, dependent syndrome and withdrawal state, which is a whole range. It is difficult to try to comprehend the precise circumstances under which alcohol and drug misuse would be completely ignored, and those under which it could just be convenient to use the new legislation to lock somebody up because they were extremely drunk. There is potential for abuse in interpretation of the rule.

Rosie Winterton: I reiterate that, if there is an intention to exclude binge drinkers, one would assume that lots of people are already the subject of detention because of binge drinking or drug misuse on a one-off basis. That is not the case, so it is difficult to understand why there needs to be a new provision, rather than retention of the existing practice that covers dependence on drugs or alcohol.
I want also to make some points on the exclusions themselves. We agree that sexual orientation is not a mental disorder, and nor is sexual identity, if it is assumed to mean a person’s own identification of their sexual orientation. Breaking the law and acting in a disorderly manner are not of themselves a mental disorder, nor are political, cultural or religious beliefs, however curious or unpalatable they might be to some people.

Charles Walker: It is a pleasure to serve in a Committee that is chaired by your good self, Lady Winterton.
I think that the Lords inserted the exclusion on cultural, political or religious beliefs, not to help guard against overbearing clinicians, but perhaps to protect against overbearing Governments that might lean on clinicians. Before the Minister dismisses my concerns, let me say that I do not think that anybody in the room thought three years ago that the prevention of terrorism legislation would be used haul off from the Cenotaph a woman reading the names of soldiers fallen in Iraq.

Ann Winterton: Order. The hon. Gentleman has gone rather wide of the mark.

Rosie Winterton: I understand that the hon. Gentleman wants to guard against a future Government that might put pressure on clinicians who are already working hard and well with the Mental Health Act. However, is it really the case that, having been leant on by the Government, those clinicians might become completely different people and detain people who make comments that are not in line with Government policy? I must say—to return to the point made by my hon. Friend the Member for Stockport—that it is unlikely that waving the Mental Health Act around will stop a draconian Government.
As I said, including something that is not a mental disorder in a list of exclusions of mental disorders is not only unnecessary but, particularly in matters such as sexual orientation, gives the impression that we do think that it is a mental disorder and therefore must be excluded. It is stigmatising in that respect.

Angela Browning: The Minister will be aware thatthe scrutiny Committee recommended exclusions because the definition of a mental disorder was being broadened. In respect of cultural, religious or political beliefs, it is not a matter of somebody saying something and being locked up by a draconian Government butof how those beliefs might manifest themselves in behaviour. It is the movement from a clinical diagnosis to a behaviour that will now determine a mental disorder under the new definition.

Rosie Winterton: As I tried to make clear this morning, we have not broadened the definition of a mental disorder. We do not expect that many more people will be included. I gave two specific examples of people whom I believed were currently not included—those with acquired brain injury in adulthood and those with some form of personality disorder. It is a tiny number of people. We are not trying to expand the number of people who could be brought under the Act. I know that it is a popular argument that the two go together, but both are wrong. We are not broadening the definition immensely, and we do not want to include exclusions for conditions that are not mental disorders in the first place.

Chris Bryant: I am terribly sorry for not saying thank you, Lady Winterton. It is a great delight to serve under your chairmanship. Now that I have rectified that, will the Minister respond to the point made differently by the hon. Member for Daventry, who is probably one of the nicest Members of the House? He said that one of the difficulties is that some people, because their faces do not fit, end up in the mental health system when they might not otherwise have done. The exclusion worded in terms of cultural beliefs might, in the view of some, fit the need to rectify the situation whereby many black African and Caribbean people are detained who probably would not be if they were not culturally different from others.

Rosie Winterton: That is an important point. As my hon. Friend may know, we have a whole programme of work to deal with some of the issues involved in black and ethnic minority detention, of which there is a disproportionate amount. Some evidence suggests that that is not necessarily because psychiatrists do not agree with an individual’s beliefs but because, very often, that individual has late access to services in the first place. It is also sometimes due to the route by which people come in—through the police system rather than through accessing services earlier.
The Government have a series of pilots to examine the reasons. The way to deal with that issue is to take a good look at the clinical practice and how we can reach out more quickly to people at an earlier stage so that they do not feel frightened of coming forward for services, and to try to do that through the Bill. My hon. Friend may know that we have included in the code of practice principles on non-discrimination that must be considered. There are ways in which we can show that. 
It goes back to my earlier point about some of the good work on how to have values-based practice. My Department has worked closely with psychiatriststo put together training works and written communications about how to ensure that practice is not based on judging someone else because of their cultural values.
I hope that I have tried to answer the point made by the hon. Member for Daventry. First, it is important to remember that a series of conditions have to be fulfilled before detention can take place. Secondly, as those conditions obviously include risk to self or others, any case involves a risk-based assessment of whether somebody should be detained because of the riskthat they pose to themselves or to others. Underthe Government’s proposals, appropriate medical treatment has to be available.
If the hon. Gentleman was asking what the medical treatment would be for a cultural disagreement, such matters would be noticed fairly quickly. As I have said, two doctors have to agree to someone being detained and such an individual can appeal to the mental health review tribunal and say that they have been wrongly detained and do not have a mental disorder but rather a different point of view. That is why we need safeguards that are clear to everybody, so that there is a clear path down which people can go.

Sandra Gidley: Will the Minister clarify what radical treatment is available for acute alcohol intoxication, which appears to be covered under ICD10 and therefore could be used for detention under the Act?

Rosie Winterton: Treatments are available. I am not a clinician, as the Committee might have recognised, and I would not like to start a precedent of giving diagnoses and prescriptions for treatment during the course of the Bill. That would be quite the wrong path to go down. Treatments are available and it is important, before we move on to that point, that we reiterate that it is important that we have safeguards. The hon. Lady asks what appropriate medical treatment is available. Under the Government’s proposals, for the first time, there is a legal basis for considering the appropriate treatment. As it is one of the conditions, the tribunal is given the ability to ask in many more cases whether the treatment is appropriate for the individual.
The arguments that have been made about social control are, in a sense, the gist of the fears. Can the Bill be used for social control? I do not believe, for all the reasons that we have discussed, that the exclusions are necessary in that sense. I re-emphasise that nothing in the Bill, with or without the extra exclusions, would permit action on any basis except genuine mental disorder. That is what we need to come back to every time. The important point is the clarification of mental disorder and the necessity for things not to get in the way of people receiving treatment, and I shall return to why I think the exclusions do that.

John Pugh: The Minister is genuinely trying to shed light on quite a difficult issue, but she is slightly oversimplifying matters. She just said that no psychiatrist would take a case to a tribunal or anything else and say, “I’m sectioning this person because of their cultural differences.” However, a psychiatrist might regard a person’s cultural beliefs—or, for that matter, their individual beliefs—as indicative of a delusion. That is what the precautions try to forfend and prevent.

Rosie Winterton: I am afraid that I just do not agree. The exclusions are currently not in place, yet I do not have an enormous amount of evidence that thousands of people are being detained because of their cultural beliefs. I take up the point that my hon. Friend the Member for Rhondda made about our needing to ensure values-based practice that is non-judgmental on the part of the clinician. In a sense, however, that is the process of ensuring that the diagnosis is correct.
The other point that I particularly want to raise is that there is always a concern in such cases that a series of such exclusions could not only cause confusion for clinicians, but create what we might call a lawyer’s field day. If somebody had the ability constantly to mount challenges on the grounds that they had been detained for their beliefs, as opposed to the simple mental disorder test, that would completely open up the Bill to people challenging it. That could well happen in some very difficult cases. Let us remember that in such cases we are naturally dealing with people who do not want treatment, because that is the reason for the detention. The more exclusions we include that are not about mental disorder, but which muddy the issue, the more likely it is that time in tribunals—this relates to the point that the hon. Member for Tiverton and Honiton properly raised earlier—will be taken up with trying to untangle what has been advised in order to get in the way of getting treatment to people.

Tim Boswell: Very simply, would not the Minister therefore agree that the right antidote to any claim that the person is being persecuted because of their beliefs would be to adduce correct medical evidence to the effect that their disorder is a mental one, which is presumably the process that the clinician will have undertaken in the first place? The clinician would then have the opportunity of expressing that view and overturning the patient’s no doubt genuinely felt belief to the contrary.

Rosie Winterton: It is absolutely right to say that that is the process that the clinician should go through, and that is what the mental health tribunal has to look at. However, there are cases, sometimes in offender situations, in which people receive quite strong legal advice on how not to be in the situation that they are in, particularly if there is a hospital disposal. It is sometimes in the individual’s interest not to prefer to be in a prison setting, as opposed to a hospital setting, because of some of the implications of that. If we simply allow legislation to pass that gives even more opportunities for such challenges, when the basis of such decisions should be whether someone has a mental disorder, we have to acknowledge that there will be a lawyers’ field day.

Charles Walker: On the measure relating to cultural, religious and political beliefs, a paper from the British Psychological Society said:
“This amendment would only serve to exclude people whose mental disorders were solely expressed in terms of the issues listed. It would not mean that people engaging in these behaviours or having such beliefs were immune from compulsion, should they otherwise meet the relevant criteria.”
So the proposal relates purely to whether somebody’s so-called mental illness manifests itself in a political expression. If so, action could not be taken against them, but if they were doing other things and were a danger to others because of their actions, other parts of the law would naturally allow them to be dealt with.

Rosie Winterton: But that is exactly the point that I am making. The test in all this is whether there is a mental disorder. The more that that is complicated by other exclusions, the greater the likelihood that it will become confusing for clinicians, who make such judgments all the time, apparently without locking up lots of people for their religious or cultural beliefs. That is the initial premise; never mind this future Government who are going to force them to lock everybody up when somehow everything will change and people will start down the road of saying, “It’s about your cultural beliefs.”
I reiterate that there will be two doctors. We are talking about the mental health review tribunal and about ensuring good clinical practice. I return to the point: the more exclusions there are, the more potential there is for confusion and for challenges by lawyers who may well wish, for whatever reason, when they give legal advice in offender cases, to say, “We are going to challenge this on all the opportunities in front of us.” That is not what we should be doing in modernising and reforming this legislation.

Tim Loughton: I am grateful to the Minister for giving way, because I am desperately trying to follow her argument. May I bring her back to a point that she made about the people who we are considering may be those most resistant to complying with the legislation? Does she acknowledge that a large proportion of the people who are subject to sectioning enter the mental health services on a voluntary basis? Such people might be deterred from seeking treatment if they think that they might be pursued because of some cultural or religious belief that they hold, particularly if they are a member of a black and minority ethnic community. They might therefore be deterred from seeking any assistance from mental health services in the first place.

Rosie Winterton: I am afraid that I do not follow that argument at all. The hon. Gentleman is saying that without the exclusions, people are going to be deterred. I venture to suggest that not everybody in such a situation will be examining the Mental Health Act. We are talking about people who are at a vulnerable time in their lives and are seriously ill. We are talking about the attention that should be given when people do not want to take voluntary treatment or when they agree to voluntary treatment but there is a worry that they will not comply with it, which is when sectioning is sometimes used.

Doug Naysmith: Quite a lot of reference was made this morning to the scrutiny that we gave the previous Bill—the one that was replaced by the amendment. One of the things that the Sainsbury centre for mental health argued strongly was that exclusions for alcohol or drug abuse could be included and supported, because the deterrence argument would be strong for people who did not have a mental health problem but did have an alcohol or drugs problem. None of that would apply to any of the things that have been discussed.

Rosie Winterton: I agree with my hon. Friend, so I shall be urging the Committee to support the Government amendment. The amendment that has come from the other place is unnecessary and potentially confusing. It has the potential to deny treatment to people who need it and we might end up in the hands of a long, difficult arguments over the legal aspects. Such a situation will not be good for patients, because vulnerable people will not get the treatment that they need.

Hywel Williams: Does the Minister accept that some people in society have, in their terms, a well-founded belief that they might be persecuted because of their religious beliefs or their cultural background? Would not having an exclusion on that point reassure such people that should they be sectioned, it would not be done on those particular grounds? I make a reassurance argument.

Rosie Winterton: Again, somebody might have a fear of persecution because of their religious belief. Where that is accompanied by a mental disorder and that fear—what they think is happening to them—is the result of it, the challenge in the first place for our mental health services should be to try to help that person with their condition. That should be our approach where, as the hon. Gentleman is saying, as a result of a mental disorder such people have a fear of religious persecution.

Ann Coffey: Surely, the way of reassuring people from ethnic communities who might feel that their way of thinking about things is different from that of the wider community is to ensure that when they come into contact with mental health services they feel that professionals understand the differences of their cultural beliefs. The only way to reassure such people is to improve the standards of service that we offer; we cannot do it by introducing an exclusion that will not reassure them. This exclusion will send out the message that psychiatrists will section such people because they have culturally different beliefs. That is way of driving such people from the service, rather than helping them within it.

Rosie Winterton: I agree that, in a sense, this matter draws attention to something and creates fear whereas we are striving to have the best clinical practice that says that people need to be understood in terms of their cultural beliefs. This debate has been ongoing. I do not believe that people are not trying to improve the situation, because a lot of good work is being done to say, “Let us be clear that we are not judging people on the individual psychiatrist’s belief; we are trying to understand others at the same time.” It is important that the debate takes place, but it would be wrong-headed to think that we can somehow pat ourselves on the back because we put something in a bit of legislation that confuses things and does nothing to sort the situation. We are talking about service provision. For all the reasons that I have outlined, there is no way that this measure does not get in the way of getting treatment to people, so I ask the Committee to support our amendment.

Tim Loughton: I welcome you to the Chair, Lady Winterton, and in doing so issue a blanket welcome from the entire Committee rather than the continuous gratuitous oleaginousness we have had since half-past 4. We very much welcome you here, Lady Winterton, and may we also say how very nice we think you are as well?

Chris Bryant: Just to add to the oleaginousness.

Tim Loughton: Which was started by the hon. Gentleman.
I have desperately tried to follow the debate for the past hour, and I have to say—I hope that I am not alone in this—that I feel more confused by the Minister’s explanation of what she is trying to do at the end of it than I did when we started. She constantly goes on about some terrible future Government wanting to lock everybody up. However, we are more concerned about this Government, whose legislation could end up with more people being locked up, and we are not the only ones who are concerned. Many hundreds and thousands of mental illness sufferers are also concerned. That is why there has been such a strong and concerted lobby over so many years in defence of their liberties, which are being undermined by the Minister’s proposals.
The Government and the Minister seem to be in denial about what the definitions that we have discussed do. Clause 1 and schedule 1 extend the definitions of mental disorder. In clause 1, several definitions that are in the old Act are scrapped in favour of a much wider mental disorder definition. The explanatory notes to schedule 1 explicitly say that the effect of this
“is to widen the application of the provisions in question to all mental disorders, not just those which fall within one of the four categories (or the particular category or categories to which the provision applies). Practical examples of disorders which would now be covered by those provisions are forms of personality disorder”,
and so on. In my book, in most people’s books and certainly in the book of the Richardson expert committee and most of the people who have been scrutinising the Bill closely, that amounts to an extension of the definitions of mental disorder, which de facto means that potentially more people can be scooped up in that net. That is the basis on which we start.

Ann Coffey: We have just had a debate about mental disorder, and the hon. Gentleman appeared to support the new definition that brings all those things under mental disorder. Is he now saying that he is concerned about it. If he is concerned about it, why is he supporting it? He was perfectly at liberty to propose an amendment to clause 1 to narrow the definition if he felt that it was too wide.

Tim Loughton: Very simply, as the hon. Lady will know, we are supportive of the changing of the definitions of mental disorder if that is balanced bythe exemptions. That was exactly the line taken by the Genevra Richardson committee, which concluded that
“a broad definition of mental disorder in the draft Bill must be accompanied by explicit and specific exclusions which safeguard against the legislation being used inappropriately as a means of social control.”
That is the quid pro quo that the Lords put into the Bill, which has been supported by the Opposition, the pre-legislative scrutiny Committee, the Richardson expert committee and most other sensible-minded people. There is no changing of positions.

Ann Coffey: In that case, if the exclusions that the hon. Gentleman wants are not included in the Bill, will he still support the new definition of mental disorder, or will he withdraw his support?

Tim Loughton: We will then have a serious problem, but the hon. Lady should remember that it is for her Government to overturn amendments to the Bill, while Opposition Members are seeking to defend what we believe are the improvements and extra safeguards that the House of Lords has put in. We are therefore in no position to amend something that has not yet been amended. That would be pre-empting what the Government are trying to do. I hope that the hon. Lady and her colleagues will not be duped into following the Minister, who seeks to get the Committee to do so. That would weaken the Bill, reduce the safeguards and not be in the interests of people suffering from mental illness. At the end of the day, we will see how many Labour Members follow the Minister in defiance of80 members of the Mental Health Alliance and cross-party support for these amendments at all stages in the House of Lords.
The Minister’s response to some potential anomalies, which were first pointed out by the hon. Member for Rhondda, was also worrying. It is quite important that the reference to “solely” that was in clause 3, as amended, has now been dropped. That is an important consideration for how we regard dual diagnosis, yetthe Minister responded that she “envisaged” that the reason why it had been changed was whatever had then been proposed. Well, this is her amendment; it is in her name. I would have hoped that she was better informed than to be in a position merely to envisage why Government amendments to a Bill had been tabled, whoever has actually written them for her. She must support such amendments and account to the Committee for why they are being put into the Bill now, seeking fundamentally to overturn what the Lords have done in another place.
May I also correct the Minister on some other factual matters? The Lords amendments on sexual identity are in accordance with the Joint Committee on Human Rights report on transsexualism and gender dysphoria. She was also mistaken in saying that homosexuality is not included in the ICD10; it still is, whatever we may think of that, albeit that it says that it is not a mental disorder. She specifically said, as the record will show, that homosexuality is not included in the ICD10, which is wrong. Also, paedophilia is not excluded by the Lords amendments; it is not included in ICD10 under sexual identity or sexual orientation. So we have problems with some statements that she has made. These are important issues that go to the heart of this Bill, and one of the big six areas that the Lords added to it, with cross-party support and by a large margin. We are seeking to support their amendments today.

Chris Bryant: Is the hon. Gentleman really saying that paedophilia is not included in ICD10? It clearly is, as one of the paraphilias.

Tim Loughton: If the hon. Gentleman refers to the debate in the Lords, he will see the comments from Baroness Murphy on how paedophilia will be treated by this Bill. I suggest that he looks there.

Chris Bryant: Just to help the hon. Gentleman, it is item F65.4, and it is a disorder of sexual preferences. That is pretty straightforward; he can apologise to the Committee if he wants.

Tim Loughton: Well, like the Minister, I am happy to come back to the hon. Gentleman on that point. My point is that paedophilia is not included under sexual identity or orientation in ICD10. Does he agree with that?

Chris Bryant: The hon. Gentleman said that it is not in ICD10, but it is counted as a paraphilia there. That is pretty straightforward.

Tim Loughton: I am sorry if I am being misinterpreted. To read again the words that I used, it is not included in ICD10 under sexual identity or sexual orientation. I believe that that point is true; does the hon. Gentleman want to challenge it? If he does not, we can take that as read.

Chris Bryant: I think that it might be best if we were to reconcile this matter afterwards with an exchange of letters, but clearly that is not precisely what the hon. Gentleman said earlier.

Tim Loughton: I hope that it is clear, now that I have re-read my words, that that is what I said. I am not entirely sure why the hon. Gentleman wants to make such an issue of it. He did not seek to take the Minister up on what I believe was a factually incorrect statement in her address, so I do not know why he is taking it up now. As my hon. Friend the Member for Tiverton and Honiton has said, there is a move in the Bill from an emphasis on clinical diagnosis to an emphasis on behaviour, and that is why it is so important to have the relevant definitions.
I was a member of the pre-legislative scrutiny Committee and I want to refer to something that the Committee said to reinforce the point about why a balance is needed between a wider definition and the exemptions. The Committee said:
“Although we conclude that the Government should retain the definition of mental disorder contained in the current draft Bill, we believe that the scope should be narrowed by means of specific exemptions and by the conditions for the use of compulsory powers.”
I wholeheartedly concur with that, and that is what the Richardson committee said as well.
The Minister has referred to exclusions as arbitrary obstacles to the use of compulsion, which will cause uncertainty, yet she has conceded the necessity of including references to drug and alcohol misuse. She has conceded the principle, but not the scope.

Rosie Winterton: The whole point about drug and alcohol dependency is that they are mental disorders. That is the issue, and that is why they should be included.

Tim Loughton: The Minister was unable to gauge the difference between misuse and dependence, and she said that only recently had the Government been made aware of problems with the definitions of misuse and dependence. I agree—we considered this in the pre-legislative scrutiny Committee, and somebody referred to the Sainsbury report—that there might be a disincentive for people to seek treatment, but similar considerations could apply to the other exemptions that the Lords have added on sexual identity and on cultural, religious or political beliefs, so I struggle to understand the consistency in her approach.
Lord Alderdice made what I thought was a very important contribution to the debate in the Lords. He said that
“we could end up dragging into the net all sorts of people who are not suffering from mental illness in a proper sense and it becomes a question of how we deal with people who are difficult, different or deviant in our society.”—[Official Report, House of Lords, 8 January 2007; Vol. 688, c. 82.]
Baroness Murphy referred to the many cases of people who in the old days would have been dumped in mental hospitals and asylums. She said that those institutions
“became repositories for all kinds of socially excluded people when there did not seem to be anywhere else to put them.”—[Official Report, House of Lords, 8 January 2007;Vol. 688, c. 76.]
Lord Alderdice also referred to the very interesting subject of auto-erotic strangulation in the debate on sexual identity and sexual orientation, on the backof which comments he was described by Baroness Murphy as a “wonderful tease”. The Baroness also raised the subject of the everyday rubber fetishist. They have some interesting debates in the House of Lords. The Bishop of Coventry mentioned the Syrian monk, Dionysius the pseudo-Areopagite, and referred to the Church of England submission that expresses concerns about the Bill being used as a means of social control.
The Government appear to revel in their condition of splendid isolation. For instance, the Mental Health (Care and Treatment) (Scotland) Act 2003 includes a list of exclusions that covers
“sexual orientation; sexual deviancy; transsexualism; transvestism; dependence on, or use of, alcohol or drugs; behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person”—
and—
“acting as no prudent person would act.”
The Government often refer to the New Zealand legislation, and that also includes a list of exclusions.

Tim Boswell: Will my hon. Friend tell the Committee whether he is aware of any difficulties in the implementation—for example, a series of legal challenges—pertaining to either the Scottish or New Zealand legislation?

Tim Loughton: Those countries seem to be getting on with their new legislation rather well. It is early daysfor Scotland, but there are some good signs fromthe Scottish legislation. The pre-legislative scrutiny Committee modelled many of its recommendations on what had already been achieved in Scotland.
On exclusions, perhaps I could also quote the evidence given to the Joint Committee by Dr. Zigmond, from the Royal College of Psychiatrists:
“People who make life-style choices either to behave in a criminal manner, or to drink to excess, or to gamble, or to become addicted to cigarettes should not normally be forced to stop those by a health service. If a government feels that those behaviours are inappropriate, then they should legislate in relation to those behaviours, but they are not part of what is generally understood as people who are ill.”
That is right. Yet those people could potentially be caught within the remit of this extended mental disorder provision without the specific exemptions.
Even if that were not so and there was not going to be a field day for the lawyers, as the Minister seems to claim—it is usually those on the Opposition Benches who subject the Government to the claim that their muddled legislation will lead to a field day for lawyers—the perception among vulnerable people of what could happen to them if they submit and present to the mental health system would be that they will be forced quickly down a coercive route, simply because they have other issues that are not, strictly speaking, mental illness. That perception is deeply damaging.

Rosie Winterton: Can the hon. Gentleman give me an example of how somebody who smokes a lot of cigarettes will be captured under the Bill because of the changes that we have made?

Tim Loughton: We debated that issue the other day. Somebody with a severe lung condition who smokes a lot of cigarettes could be construed as wanting to hasten their own death. That could be construed as some form of mental disorder. However, I would concur that that is an extreme example.

Charles Walker: On the exclusions relating to religion, some religious sects or organisations—for example, a Christian one called Opus Dei and certain Islamic faiths—believe in self-flagellation as a way of atoning for sins and for penance. Would they potentially be caught by this legislation if the religious exemption put in by the Lords were removed?

Tim Loughton: That is another interesting line of thought: self-harm for religious aims. However, potentially, because of the wider definitions that now apply those people could be caught in the net of sectioning. Whether Government Members like it or not, that is the implication of the proposed legislation. More worryingly, that implication is perceived by people who have what we might describe as slightly odd religious, cultural or political beliefs, who may be deterred from approaching mental health services for help because they fear that they may be caught inthis net.

Rosie Winterton: I am also interested in the hon. Gentleman’s example of the person who smokes a lot of cigarettes potentially being detained because of the changes that we are proposing to the 1983 Act. Which of the exclusions that the hon. Gentleman wants to see would prevent such a person from being detained?

Tim Loughton: Well, it is dependency, isn’t it? The Minister is unclear about the difference between misuse and dependency. Her amendment is not as inclusive as the Lords amendment that she is seeking to replace and it mentions only
“dependence upon...alcohol or drugs”,
and not misuse. Substance abuse is being covered here.

Madeleine Moon: Does the hon. Gentleman accept that the climate of fear and anxiety that exists has been generated solely by the Opposition? There is absolutely no suggestion in the Bill that a climate will be created and set for a future agenda in which people who do not have severe mental health problems will be locked away. An insult against the Government is implicit in all of the discussion that has taken place this afternoon, but an insult more especially—I find this most fearful as a previous representative of it—against the mental health profession of this country.

Ann Winterton: Order. An intervention should be relatively brief and a question should be posed. I hope that the hon. Lady is about to reach it.

Madeleine Moon: I apologise, Lady Winterton. Perhaps I have spent too long holding myself in. I should have intervened earlier.
Does the hon. Gentleman agree that a number of people demonstrate their mental health problems through delusions that have a religious basis? I have double checked and found evidence of people who confirmed that their delusions included religious delusions when thought that they were God or Mohammed. Including such delusions as an exemption would, in fact, create a situation in which lawyers would become involved.

Tim Loughton: Such matters are not fears and hypotheses that have been dreamt up by Opposition Members to entertain or alarm the Committee. They are the real concerns of 80 members of the Mental Health Alliance and countless thousands of mental illness sufferers whom they represent. Whether or not legally it turns out to be the case, the perceptions that have been created by the Bill for those people are deeply worrying. In no way are such matters trying to denigrate the mental health profession. What it wants is clarity. It needs that above all. The medical opinions of members of the mental health profession need to be based on clarity in the legal system about what they are entitled to do and the remit of the powers that they will have. They are saying that the provision will create an enormous lack of clarity and that it will undermine the therapeutic relationship between a practitioner and the patient, which is perhaps more important in mental health care than in physical health care.

Tim Boswell: As for clarity, my hon. Friend will recall that we had exchanges some time ago about addiction to tobacco. Does he agree that the clause, as drafted, would include that addiction, which would be embraced generally within the term “substance misuse”? The examples of dependence on alcohol or drugs are not exclusive and would not exclude tobacco, whereas conversely the Government’s amendment makes no reference to dependence on tobacco. Therefore, it would be open to a clinician to section someone for that dependence, which would not apply if they were dependent on alcohol.

Tim Loughton: My hon. Friend makes an interesting point, which is not limited to tobacco. We could be looking at solvent and petrol abuse, too.
Coming back to the Minister’s point about where such matters would be covered under the amendment, surely she is aware that all addictions, including tobacco, are covered by ICD10 as a mental disorder. They are already caught up in those things. Such addictions would be regarded as a mental disorder, whether or not they are mentioned explicitly. She needs to do a bit more homework on the amendment’s implications.
On the implications and perceptions for the black and minority ethnic community, we have received submissions from the BME groups. One brief, which refers to National Institute for Mental Health in England documents, states:
“Extensive literature confirms that racism can apply in the practice under the current law and is even more likely under the broader definition of mental disorder. Research in cultural psychiatry demonstrates how hard it is to diagnose when issues of culture and belief get involved in the mix.”
As for the point made by the hon. Member for Bridgend, the brief states:
“The difference between delusional behaviour and hallucinations and culturally or religiously appropriate beliefs, such as belief in an interaction with gods, witchcraft and spirits, is often difficult for psychiatrists to define.”
It comes down to the issue that the pre-legislative scrutiny Committee, the Richardson committee and all the other committees made absolutely clear. People should not be subject to sectioning solely on account of their problems with substance misuse, sexual identity or cultural, religious or political beliefs, but on the basis of a mental illness that can then be treated bythe appropriate professionals. By rejecting the amendments, we run the risk that people could be subject to coercion within mental health services on the basis of something that is not primarily a mental illness and will not be subject to treatment as such. Equally bad, if not worse, is the perception that that would create. The Government’s aim to remove the clear, understandable exclusions that we are seeking to keep in the Bill would cause a great deal of concern and angst among those who might not then present for the help and treatment they need.
This is one of the first big-issue debates about the changes to the Bill. The Government are determined to bulldoze through their own amendments in defiance of the vast majority of those involved in mental health, be they practitioners, service users, service providers, charities or others. The cross-party alliance in the Lords did not just conjure up the amendments to alarm people, or pluck them out of the air to inflict some defeat on the Government. After an extensive, well-informed debate by some seriously skilled, expert and knowledgeable people, they made the amendments to clause 3.
On that basis, it will be very bad news indeed if the Government—on the basis of muddled logic, I must say, and factual errors from the Minister—cajole Labour Members into overriding those precautions and pushing through their amendments. The Conservatives will certainly vote against them ifthey do.
Several hon. Membersrose—

Ann Winterton: Order. Before I call the next speaker, I think that it is appropriate to let the Committee know that it is not my intention to allow a stand part debate, as this debate is fairly wide ranging, to say the least.

Brian Iddon: Thank you, Lady Winterton. I hope to be brief.
When I came to this House in 1997, almost 10 years ago, people misusing drugs—I am the chairman ofthe misuse of drugs group, so I lay that on the table—found it difficult, if they also had a mental illness, to access mental health services. Our group launched an inquiry into the problem and published a report in 1998 on comorbidity, or dual diagnosis. At that time, an holistic approach to treating people with comorbidity of that type was not fashionable. It has got a darn sight better since, but in some parts of the country it is still not right. People out there who have mental problems and misuse drugs still find it difficult to access mental health services.
The Minister will know that some people who misuse drugs such as amphetamine, cocaine and even cannabis with high concentrations of tetrahydrocannabinol —I am talking about 15 per cent. rather than 5 per cent.—may become mentally ill, although there is some doubt whether a predisposition is necessary. No doubt some people may become mentally ill as a result of using certain, although not all, drugs.
On the other hand, people who are mentally ill and tortured by their mental illness also try to escape their problems by turning to the kind of drugs that other people misuse, too. The terrible problem of diagnosed schizophrenics using cannabis is well known, and tragically, in some circumstances, it exacerbates their clinical symptoms. I support the Government’s amendment, but I seek an assurance from the Minister that she will do everything possible to ensure that people are not turned away from mental health services when they are misusing substances. Some of those people—I have met them—can be extremely chaotic. The hospitals do not want them anywhere near, because they are so chaotic. Their lives and behaviour are chaotic, but obviously they need treatment for the drug misuse and the mental health problems that they exhibit.

Ian Gibson: Does my hon. Friend agree that many of the drugs are not pure, and that the by-products in some of the drugs causethe problems? There is no guarantee that any drug is 100 per cent. chemically pure.

Brian Iddon: That is true. There is also the considerable problem of poly-misuse—the use of alcohol and drugs, or of different cocktails of drugs. There has not been a lot of research on how those affect the mind. We need much more research, but that is a subject for another debate.

Madeleine Moon: Does my hon. Friend agree that many of the people whom he is describing often end up homeless because of their chaotic lifestyle? Frequently, the people who work with homeless people, often in the voluntary sector, find it difficult to get support from mental health services for people who suffer from severe mental health difficulties.

Brian Iddon: I accept that point, too. It is true.
I want my right hon. Friend the Minister to assure me that she will do everything possible to ensure that people who deal with people with comorbidity are properly trained in the medical schools, and that we will try to get more people to work in a more holistic manner and even to take social problems into account.

Sandra Gidley: I note that a number of hon. Members hope to speak, and I want to add my support to many of the comments made by the hon. Member for East Worthing and Shoreham. Indeed, as he said a lot of what I was going to say, I shall be brief. However, it is worth repeating a few points.
Opposition Members cannot say often enough that we do not raise these matters only for the sake of an argument or to prolong the debate, but out of genuine concern. There is such a consensus in the Mental Health Alliance, and given the disparate nature of some of the members of that alliance, it is telling that there is such agreement on many of the problematic aspects of the Bill.
As has been said, Richardson recommended in 1999 that a new mental health Act should contain a broader definition of mental disorder. He also stated that that needed to be balanced by some exclusions. It is not only us who say that: our stance is supported bythe Royal College of Psychiatrists, the British Psychological Society, the British Association of Social Workers and the Royal College of Nursing. They are all people with everyday contact with service usersand the very people who will be responsible for ongoing care.
It was mentioned that Scotland and New Zealand have introduced a range of exemptions. A number of states in Australia have done the same, despite the fact that in all those countries the definition of mental disorder or mental illness is narrower than ours. I hope that the Minister will tell us what note has been taken of the experience of other countries and why that line has been disregarded by the Government. I take her point, to a certain extent, that people have so far not been detained, for some of the reasons mentioned today. That does not mean that we should waste this once-in-a-lifetime opportunity to make it crystal clear that this will not be tolerated in the future.
The Royal College of Psychiatrists and others seem to be asking for clarity to help them in their jobs. The Minister seemed to think that it was insulting to suggest that they could not do the job already. They seem to disagree with that and would prefer stricter guidelines, so I do not think that it is a case of insult. I think that, particularly in a litigious climate, that they want to be absolutely clear about what is possible and what is not. They probably also want to safeguard themselves and rogue members from allegations of social control. The hon. Member for Bristol, North-West (Dr. Naysmith) pointed out earlier that any such transgressions should be dealt with by professional bodies. However, those of us who have looked into professional regulation will have noticed that it can take a prolonged pattern of aberrant behaviour before it comes to the attention of the authorities. One has only to look at the case of Harold Shipman to realise that malpractice can go undetected for a long time.

Doug Naysmith: I think that the hon. Lady is misquoting what I said. I did not talk about discretions and someone coming before a regulatory body, but about the high quality of clinical practice that we should expect and which should be automatically available. I know that she is making the point that we do not always get that, but it should not be something that needs to be written on the face of a Bill that patients will never see.

Sandra Gidley: One always hopes that certain matters do not have to be written down on the face of a Bill, but, sadly, we have seen too many examples of legislation that has been introduced as a reaction to problems that would not have happened had every member of the profession adhered to those high standards. I do not think that this is the place for that debate. However, I acknowledge his point.
This morning, the hon. Member for Tiverton and Honiton (Angela Browning) described how people with autistic spectrum disorder can exhibit behaviours that, on the face of it, can seem quite strange, but which become logical and understandable in the context of ASD. To some extent, a parallel can be drawn with the reasoning behind what the House of Lords was trying to do with its amendments.
The hon. Member for Broxbourne (Mr. Walker) introduced a subject that I was going to touch upon. I once visited a school where there was a young man who had autistic spectrum disorder but who was also of Iranian dissent. There was a practice which involved a very large stick. It looked as though he was beating himself with it quite severely. This was alarming behaviour to see in a school. What was strange was that all the other children were ignoring this child and the teachers were quite happy for this lad to have the big stick. In that environment, people understood his behaviour and his problems and he was quite happy. He did not need treatment, he just needed tolerance. One can imagine a situation in which that lad grows up into a hulking great 18-year-old and goes out into the community, which does not understand the situation, and it is thought that there may be a mental disorder. In fact, there is not and he should not be treated as having such a disorder. I cite that as one fairly unusual example, which, taken in the wrong context and without the safeguards in the House of Lords Bill, could result in an inappropriate sectioning.

Ann Coffey: I understand the hon. Lady’s concerns, but I cannot see how putting an exclusion in the Bill would prevent a psychiatrist from falling below the standards to which they should adhere in assessing people because of lack of knowledge and understanding on their part. At the end of the day, we are asking mental health professionals to assess individual situations. We cannot prevent them from getting it wrong individually, as clinicians, by having a clause in the Mental Health Bill, telling them that they are not to get it wrong.

Sandra Gidley: Would that life were that simple. It is not a case of doing that, but a clear intention in the Bill would make clinicians think twice. We should not lose sight of the fact that mental health services areunder huge stress. It would be easy and perhaps understandable in some cases for people to come to an obvious conclusion. I happen to know that many people speak highly of the services once they access them, because they find that time and attention are given to them, but we should not necessarily take it for granted that that will always be done. As I stressed earlier and as cannot be said too often, it is not us asking for the provision that I have described——it is the Royal College of Psychiatrists itself.

Hywel Williams: Does the hon. Lady accept that there is a wide variety of practice—good and notso good—apart from the obvious bad practice of someone sectioning someone entirely inappropriately? Drawing the attention of officials of varying standards of practice in respect of these inclusions can onlybe useful.

Sandra Gidley: I am swayed by the fact that it is the health professionals themselves who are asking for this clarification——in some respects, this protection——for their profession.
I wanted to talk about the alcohol exemption. I still think that it is confused. There seems to be a lack of clarity about misuse and the degree of dependency that is necessary. The Minister may say that that has been clarified, but Opposition Members are not entirelysure when someone could be covered under ICD10—the International Classification of Diseases, 10th revision—which is not covered by the exemption. It still has not been explained.

Ann Winterton: May I explain the situation to the hon. Lady? The amendment that was introduced in the House of Lords is the provision that refers to “substance misuse”. We are making the point that it is not entirely clear what is meant by it. That is one reason why we think that it should be removed: it is not clear; it is confusing.

Sandra Gidley: We shall not settle this issue here and now. We all seem to be talking at cross-purposes. Perhaps we are all choosing the bits of the legislation that we choose to believe.
With regard to sexual identity or orientation, again I have some concerns, because without this exclusion, people with gender dysphoria, transsexualism and fetishistic sexual behaviour will be brought within the legislation, because those behaviours are included in ICD10. Sexual orientation would cover the fetish behaviour. However, the JCHR reported that
“in order for a non-emergency detention on grounds of unsoundness of mind to conform to the requirements of Article 5(1)(e) ECHR, there must be reliable evidence of a true mental disorder. We are concerned at the possibility that a person with Gender Identity Dysphoria or transvestic fetishism, which are recognised aspects of private life under Article 8, might be detained on grounds of mental disorder without any actual mental disorder such as depression or actual personality disorder.”

Tim Boswell: Does the hon. Lady acknowledge in that context that the Government introduced the legislation on gender identity only because of the intervention of the European Court of Human Rights, in order to repair a defect in our interpretation of the convention?

Sandra Gidley: I thank the hon. Gentleman for that clarification, which I was not aware of. He has had a longer association with the issue. It would be useful for the Government to consider that aspect, so as to prevent the necessity for, shall we say, new legislation after the event.
I shall not go into the social control arguments, which have been raised a number of times. However, there are also concerns in the black and ethnic minority community about some of the implications of the legislation. We all know that black and ethnic minority men are committed at a higher rate for certain disorders than white males of a similar cohort. However, we must be absolutely sure that there are no cultural factors contributing to that—hence one of the inclusions in the Lords amendments.

Charles Walker: I shall make this a micro-speech. I am sorry that some hon. Members think that, in supporting the Lords amendment, we are having a go at clinicians. I hope that I can put their minds at restby reading a submission by the Royal College of Psychiatrists, which says:
“We warmly welcome the amendments made by the House of Lords and hope that further improvements in the House of Commons will ensure that it is more fit for purpose.”
I would like to think that we are singing from the same hymn sheet as the professional clinicians and that it is Government Members who are on the wrong page.
I was confused by the Minister’s assertion that the exclusions would create a lawyer’s paradise. That is not a sufficient argument for not having the exclusions, because it suggests that people with mental illness value their liberty less than those who are not mentally ill. I can assure hon. Members that if my status as a free person was being reviewed and I faced being locked up, I would fight tooth and nail for my liberty, and I would expect someone with a mental illness to take very much the same view. Why we think that people who are mentally ill should not be allowed to have legal representation, or that such representation is someone less valid than in other cases, I do not know.
In arguing her corner, the Minister said that lawyers would be arguing on behalf of some of the most dangerous offenders, which again suggests that the Bill is not really a public health Bill, but a public order Bill. The Minister’s focus on dangerous offenders in that context, as opposed to people who are ill and may harm themselves, suggests that we should perhaps have a Home Office Minister sitting alongside her, making an argument for the public order aspects of the Bill.
I said that this would be a short speech and it will be. You ruled me out of order earlier, Lady Winterton,but I hope that this will be in order. The British Psychological Society, which I have every reason to believe is an august body, made a submission to the Committee that said:
“There has been a long history of compulsory psychiatric treatment being used against those who breach social and political conventions. The fact that the 1983 Act excluded certain categories of people has meant that this has been less of a concern in the UK. However, we should not be complacent about the possibility that this might happen were there to be no exclusions.”
With that, Lady Winterton, I say thank you very much.

Chris Bryant: On the face of it, it seems sensible to include the exclusions that the House of Lords has put in place. They seem very attractive. Many who remember Pinochet’s Chile or Russia under Soviet rule will know how mental health services were used to incarcerate people who were not of the right political opinion. Many British gay people, and gay people across Europe, know how it has been to be imprisoned, or for that matter executed, for their sexuality, so it seems intrinsically a good idea for the Bill to say expressly that one cannot be sectioned solely on the basis of one’s sexual orientation.
As the Minister said in her reply earlier, and as I tried to tease out of her, there is a significant issue in the way that many black Africans and Caribbeans—males in particular—are treated under the mental health system in the UK. Many are sectioned for psychotic disorders beyond the extent that would be expected, although there is probably not yet sufficient concrete evidence to be absolutely certain of that. However, certain consultant psychiatrists in London have said to me that they are aware of a fairly significant problem with London mental health services whereby people from countries in Africa bring a mentally disordered relative to Britain because they know that there are no mental health services for the relative in the African country. They do so knowing that their relative will receive mental health services here, because no clinician would be able to allow him or her to roam the streets.
I can see several reasons, therefore, why it might seem intrinsically a good idea for the Bill to contain the proposed exclusions. However, on sexual orientation in particular, it seems bizarre that we would want to cover it in the Bill. We should assume that nobody believes that somebody’s homosexuality is a reason for them to be sectioned. We should make that assumption, together with the assumption that nobody should be sectioned for their political, religious or cultural views.
Of course there will be complicated decisions, such as when someone says, “I am God” rather than, “I believe in God.” Richard Dawkins would say that both are equally delusional, but I think that British society has a settled understanding of how religion and mental health play together, and I do not believe that that needs to be put expressly in the Bill.
That is why, despite understanding the reasonswhy people might wish to include them, I find the exclusions patronising and therefore inappropriate. I also believe that they would be a legal nightmare. The person who does not want to be sectioned, and whose lawyer says that his claim to be God is a religious belief, will be able to advance that argument before the courts. That gives a much more complicated set of decisions to the courts than would be appropriate.
In the end, I suppose that I believe that there should not be any exemptions. In particular, I have a real concern about the exemption on alcohol and drug abuse. As the hon. Member for Daventry mentioned earlier, several conditions similar to alcohol dependency are conditions for which we section people. Bulimia and anorexia nervosa are both eating disorders. Many people believe that alcoholism is a similar type of disorder, and many of the treatments that people undergo for each of them, such as the 12-step treatment, would be very similar. Why, therefore, should we choose in no circumstances whatever to section somebody who is alcoholic yet be prepared to section people who might be a danger to themselves for other reasons, when I would suggest that the conditions are relatively similar?
On alcoholism, my hon. Friend the Member for Bolton, South-East made an important speech about dual diagnosis. Where somebody is an alcoholic, there is often a chicken-and-egg debate: is the person an alcoholic because they are depressed or are they depressed because they are an alcoholic? That has not been genuinely resolved in any sense, and that is why there is a worry about people being turned away from mental health services when their primary mental disorder is alcoholism. I am talking not about binge drinkers or people who drink on a regular basis, but about people who would go into delirium tremens were they to stop drinking. Such people would have fits and hallucinations, and would not be able to get through the morning, afternoon or evening without having a sufficient quantity of alcohol in their bloodstream.
I took my mother through DTs on several occasions, so I know how horrible such situations are. I understand why many clinicians will not want to have to enforce detoxification or rehab, but for some people the dependency on alcohol is the mental disorder that needs to be addressed, and all too often, people have not received the medical and psychiatric support that they need. Because such people often have chaotic lifestyles, they may be dependent not only on alcohol but on other drugs—in many cases, such people are dependent on anti-depressants. As a result, it is all too easy for the mental health services to say, “I am sorry, but we just don’t think that we can really help you.”

Brian Iddon: Does my hon. Friend agree that in the past people with co-morbidity have been told to get rid of their substance misuse before they proceed to be treated for their mental illness? We should treat people holistically, as is best practice.

Chris Bryant: My hon. Friend makes an important point. One of my worries about the provision of mental health services around the country relates to the fact that not every person is the same. There needs to be a wide range of treatment methods and locations. Some people need to be treated at home, whereas others need to be treated away from home. Some people need to go through the 12-step process, although I should point out that because reference is always made to a higher power, many people have difficulty in subscribing to it. I am keen to see genuine diversity and people being treated in a holistic way, as my hon. Friend suggests. That is why I worry about the exemption in respect of drug and alcohol dependency.
I concede the Minister’s point on alcohol misuse. The Royal College of Psychiatrists’ definition of misuse of alcohol is being drunk. Someone who is drunk has misused alcohol, although they will subsequently recuperate. But just because somebody is drunk does not mean that they should necessarily enter into the mental health system and be detained.
I want to make one other point about alcoholism. I worry that, by keeping the exemption about alcohol and drug dependency in the Bill, we are not preparing ourselves for the future. I simply do not believe that we know everything that there is to know about alcohol dependency. In 20, 30 or 40 years’ time, I think that we will have a much better understanding of how to treat alcoholism. I hold that as a passionate belief, even though I have no substantive evidence for it. By including an exemption in the Bill when the matter should be left to clinicians’ independent judgment, we might be disabling the Bill for the future.
I also want to refer to the issue of sexual identity and sexual orientation and the exemption that exists in the House of Lords version of the Bill. Incidentally, I shall try to elucidate the precise position in respect of the row that I had with the hon. Member for East Worthing and Shoreham earlier about whether homosexuality is in the ICD10 list. It is true to say that homosexuality is in the ICD10 list, but so is heterosexuality, so that does not take us very far forward. The fact that something is in the ICD10 list does not necessarily mean that anybody should consider certain people to have a mental disorder. That is the point of the Bill. Several other hurdles have to be clambered over. It is not just the fact of a mental disorder that is considered but its nature and degree and whether a person will be a danger to themselves and/or others. That has to be overcome before detention is considered. The mere fact that something is listed in ICD10 as a mental disorder is not sufficient. ICD10 does not state that homosexuality is a mental disorder; it is a more complicated measurement.
It is also true that paedophilia is not listed under a category called “Sexual identity or orientation”, because there is no such category in ICD10. It is listed under “Disorders of sexual preference”, alongside fetishism, fetishistic transvestism, voyeurism, sadomasochism, exhibitionism and various other minor disorders. The Government need to be clear about precisely what they expect clinicians to do about paedophilia. I hope that, if somebody presented to a clinician and said that they had significant sexual fantasies relating to pre-pubertal children, the clinician would want to take action on that basis. If that mental disorder were of a nature and degree that was significant enough, and if it was likely to lead to danger to children, the clinician should be free to make the judgment that the person should be detained. I should be grateful if the Minister replied on that issue, because the exemption supported by Government Members would make that impossible.
I shall end by saying that I should prefer it if there were no exemptions. Unfortunately, every psychiatristI know says, “I don’t want my ward filled with alcoholics.” That is not a good enough argument, but I understand why the Minister is supporting that position. Nevertheless, it is important that the issue of using “solely” or “alone” should be added into her amendment on Report.

Tim Boswell: I am conscious of the time, Lady Winterton. However, in the interests of time I omitted to welcome you to the Chair and I now do so.
In some of their exchanges, the hon. Members for Rhondda and for Bolton, South-East made important points about access to services, which do not directly arise from this clause, but with which I have sympathy. I find myself at odds with the Government on the clause. That is not always the case. However, they have not made the case for simplification. My colleagues have already spoken eloquently about actual fears, particularly in relation to black and minority ethnic persons and potential fears in relation to social control and I strongly endorse what they have said. I am worried that the logic of the Government’s position is to make no exclusions, whereas they bear on the clinical judgment of clinicians in relation to substance addiction.
I am mainly concerned about the safeguards for the individual faced with compulsory detention. We should not minimise that. The Minister suggested that this might all be a lawyers’ row and it would get more difficult if we defined people. I suspect that she is misadvising herself about that. If the argument is not tied to the specifics, any good lawyer would be arguing about something outwith the scope of mental health legislation and could produce the same set of arguments.
We in the House are, I hope, concerned about the liberties of the individual and safeguards from arbitrary detention. The list that is set out in the clause, as received from the other place, is a pretty good proxy for the kinds of stigma that, sadly, our society tends to apply—or has done historically. If I were in that situation, I would take some comfort from the existence of the list. I believe that tribunals could and would interpret it entirely sensibly; it would throw out the abuse of clinical judgment and reinforce good clinical practice.

John Pugh: I wish to make a few brief and, I hope, helpful remarks. We learned this morning that mental disorder is what a psychiatrist says it is, and that the definition of mental order is left deliberately vague. Sometimes, when one is not sure what something is, it can be helpful to say what it is not. I think that that is the thrust of the exceptions as defined. Tangentially, what is the Minister’s view on how the definition of mental disorders for the purposes of legislation affects service delivery in the NHS? If something is not defined for the purposes of this Bill, does that mean that it is not a mental disorder so far as the NHS is concerned—and, therefore, so far as entitlement to treatment goes—whether or not a person comes under the remit of this legislation?
There are probably cases in which sexual orientation, religious belief or political views are so extraordinary that by themselves they make a prima facie case for someone having a mental disorder. Like the hon. Member for Daventry, I would expect to see other associated symptoms. I note what the hon. Member for Bridgend said; there are cases of genuine religious mania and the like. There are even cases of people—David Icke, for example—whose political views are so extraordinary that one might think that there is something wrong with their health. The nub of the issue is that if mental disorder is to be what a psychiatrist says it is, we are not entirely happy to have psychiatrists saying which sexual orientation, which religious or political belief or which cultural preference is symptomatic of mental disorder. I think that that is the heart of the matter.
The Minister mentioned paedophilia. It was discussed on Second Reading as something that would not be covered or adequately dealt with if particular Lords amendments were to be agreed. I took the trouble to ask a number of those who had written to me directly whether they thought that paedophilia would be considered a mental disorder and whether its treatment would be excluded under this Bill; whether, as a logical consequence, it would be defined not as a mental disorder but as something else.
The BMA replied by saying that it definitely remained a mental disorder, but unlike autism, for example, it was not a candidate for compulsory treatment, so it would be excluded from the remit of the Bill. The Royal College of Psychiatrists said that it could be included, and that it would be a disorder of sexual preference, though how that differs from sexual orientation eludes me. For the Department of Health, Professor Appleby said that it was not necessarily excluded by the Lords amendment, but that it was excluded from mental disorders that could be the subject of coercive powers. In that respect, the Minister is right. The reply from Mind said that it was not intended that it be excluded by the amendment. Strangely enough, the closest fit in views was between the BMA and Louis Appleby.
It is not entirely clear what the exceptions do, but it is fairly clear what they are intended to achieve. That is to fetter the maximum discretion left to the psychiatrist, with which people are evidently uncomfortable.

Ann Winterton: I want briefly to respond to a few of the remarks that have been made. This has been a helpful and thoughtful debate. However, there have been some slightly bizarre contributions. The suggestion by the hon. Member for East Worthing and Shoreham that we are proposing to detain under this legislation people who are addicted to cigarettes fits in absolutely with what my hon. Friend the Member for Bridgend said. It is very important that we do not scaremonger; it is unhelpful to the people whom we are trying to get treated.
My hon. Friend the Member for Rhondda again raised the issue of whether, in the light of the debate that we have had today, we should have decided to include drug and alcohol dependency. That goes back to many of the representations that we received in response to the draft Mental Health Bill in 2004. It is a difficult issue. Points have been very well made about the fact that there are, of course, severe implications to saying that, as a society, we would detain people on mental health wards who simply had drug and alcohol problems. We have decided not to go down that route. However, that does not negate the important points that were raised about how we get dual diagnosis right and how we improve services so that, on the one hand, services for drug and alcohol addiction are effective and, on the other hand, when we need to step in under the 1983 Act and treat the other part of a person’s condition, which can sometimes be the result of their addiction, we get that right. Those are two important points.
I say again that I understand the points that have been made about the use of the word “solely”. That is simply a drafting matter. As I have said before, I am prepared to have a further discussion about it, if that would help to achieve greater clarity. However, in legal effect, it is really not necessary.
A number of hon. Members have talked about the Richardson report. It did not suggest any range of conditions that were not mental disorders. That is the difference with what is happening now. We are discussing excluding conditions that are not mental disorders in the first place. That is why there is a real difficulty in saying that, somehow, we should start to include those disorders at this stage.
The hon. Member for Romsey said that we lived in a litigious climate, and that is absolutely true. That is why I have made the point that, if we open up the Bill to more exclusions, we will increase the opportunity for litigation.
I would also like to pick up on what the hon. Member for Broxbourne said when he talked to me about people’s rights; of course, I absolutely agree with the importance of those rights. He also talked about the fact that I had used the phrase “dangerous offenders”. If I used the word “dangerous”, I am sure that I would have said something like, “Offenders, some of whom can be dangerous,” because that is the reality. Going back to what I said earlier, it is also the reality that some offenders will argue around these exclusions; that is where the lawyers’ paradise comes in. The Government amendment will return the Bill to the way that the Government think that it should be, with only one exclusion for alcohol and drug dependents, and I urge the Committee to support it.

Question put,That the amendment be made:—

The Committee divided: Ayes 11, Noes 9.

Question accordingly agreed to.

Motion made, and Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 11, Noes 9.

Question accordingly agreed to.
Further consideration adjourned.—[Claire Ward.]

Adjourned accordingly at three minutes to Seven o’clock till Thursday 26 April at twenty-five minutes past Nine o’clock.